This complaint coming up before us for final hearing on                      29-10-10 in the presence of Sri B.S.R.K.Prasad, Advocate for complainant and of Sri O.Girish Kumar, Advocate for opposite parties, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Incharge President :

                This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant prying to direct the opposite parties either to refund the amount paid by complainant to purchase the vehicle along with all expenses incurred with interest at 24% p.a. to a tune of Rs.6,32,025/- or in alternative to replace with new vehicle and to deliver the same with their own expenses to complainant with fresh warranty period by paying previous expenses incurred by complainant, (2) to direct the opposite parties to pay an amount of Rs.3,00,000/- to the complainant towards loss, suffrage, damages, mental agony and deficiency of service.

The averments of complaint in brief are as follows:

                The complainant with a view to improve his business purchased a BHI-ZL-08B Model Wheel Loader Vehicle from opposite party on 09-04-09 through buyer’s order dt.30-03-09 under invoice No.36 for an amount of Rs.4,99,200/-, apart from it on the even date the opposite parties have also collected an amount of Rs.1,18,800/- towards import duty, customs duties, import freight, packing and forwarding charges from the complainant under invoice No.36A.  By that time, the opposite parties have issued a warranty card            dt.30-03-09 on their companies letter pad to the complainant stating the warranty is for a period of 6 months against P.O., the opposite parties have assured to complainant that they are having adequate service persons for maintenance of vehicle to rectify the defects, which may arise during the warranty period on free of cost and also intimated that always the spare parts will be available.    The opposite parties also issued to the complainant that the requisite forms will be sent soon.  After 10 days thereto their service people visited complainant for its configuration.  There is an obligation on the part of opposite parties to provide the lubricant to the complainant at the time of delivering the machine itself for smooth running of the vehicle.  But intentionally the opposite parties have not sent it, for which the complainant paid an amount of Rs.7000/- for lubrication.  From the beginning the vehicle is not running in a good condition.  The capacity to lift the material as stated by the opposite parties is 700 kgs, but the complainant found its ability as only 400 kgs.  Surprisingly within a couple of days, the tyres of vehicle were damaged and the complainant immediately purchased new tyres to meet his business demands.  Thereafter, more than 3 times the engine of vehicle was failed and it was intimated by the complainant to the opposite parties through phone calls on 26-05-09, 18-06-09 and 23-08-09 respectively.  As and when the complainant makes a complaint with regard to failure of engine and machinery, every point of time after a long lapse of time, the opposite parties have sent the service persons.  In the meanwhile, complainants work was disturbed and he sustained heavy loss.  Lastly on 02-09-09, the opposite parties service persons visited the said vehicle and thoroughly checked the machinery and opined that the vehicle was having so many problems and some of the parts of machinery have to be changed and the service engineer issued a paper note to that effect.  Previously complainant demanded the opposite parties for the forms 21 and 22 to get the registration of vehicle but, intentionally they have not supplied the same.  As a result of which, the transport authorities imposed a fine of Rs.7,025/- and the complainant paid the same.  There is lot of negligence on the part of opposite parties in providing service to the complainant.  Vexed with the attitude of opposite parties, the complainant got issued a legal notice dt.17-09-09 for which the opposite parties issued a reply              dt.05-10-09 with all false allegations. As the engine is not in good condition, running with so many defects, the opposite parties are liable either to refund the amount paid by the complainant to purchase a vehicle along with all expenses with interest at 24% p.a.  or to replace the new vehicle with their own expenses to the complainant with fresh warranty period.  Apart from it the opposite parties are liable to pay an amount of Rs.3,00,000/- to the complainant towards mental agony and deficiency of service.  Hence, the complaint.

                The opposite parties 1 and 2 filed their written statement. The averments thereof in brief are as follows:

                The complaint filed by complainant is false, frivolous and mischievous and has been filed with malafide intention to extract money from opposite parties.  The complainant is not a consumer.  Since the opposite parties have sold the wheel loader vehicle to the complainant and the said vehicle was being used by complainant for commercial purpose but not for his own use.  The complaint filed before the Forum at Guntur is not maintainable for the purpose of territorial jurisdiction since the vehicle was sold by opposite parties at Delhi under invoice numbers 036 and 036A.  In column No.3 of declaration on both the said invoices, it is specifically mentioned in case of any dispute the matter would be referred subject to Delhi jurisdiction only.  Both the opposite parties reside at Delhi and carrying on business at Delhi.  Entire payments have been made by the complainant to the opposite parties at Delhi.  The vehicle was delivered from Delhi.  Therefore, the cause of action ever arose within the jurisdiction of this Forum.  Hence, the complaint is liable to be dismissed for want of territorial jurisdiction.  As per complaint of complainant, the opposite parties have sent their engineers to look into the complaint and on inspection of vehicle, it was found that due to shortage of oil and improper maintenance by the complainant, there was a minor problem in the clutch plate and hydraulic and the problem was rectified by the engineers to the satisfaction of complainant and that the complainant has also acknowledged on the service report                            dt.18-05-09 and 21/22-06-09 that he was fully satisfied with the working and functioning of said machine.  There is no obligation on the part of opposite parties to provide the lubricant to the complainant for running the vehicle.  At the time of delivery of vehicle, the required lubricants were filled up in the vehicle but for the heavy work and excessive use of vehicle, it required more consumption and use of lubricants have to be maintained by the complainant.  It is denied for want of knowledge, the complainant purchased any lubricant for a sum of Rs.7000/-.   It is further denied that from the beginning the vehicle is not running in good condition.  It is also denied that the capacity of lift material stated by the opposite parties was 700 kgs. or complainant found its capacity as 400 kgs.  It is also denied that within a couple of days the tyre of vehicle is damaged and it is also denied that more than 3 times the engine of vehicle failed.   The opposite parties have sent their engineer to rectify the problem and on minute inspection, it was found that the fault appeared on vehicle was due to mishandling and improper maintenance of vehicle by complainant.   It is denied that the opposite parties have sent their service persons after long lapse and the work of complainant was disturbed or he sustained heavy loss, and that the service persons opined that the vehicle was having so many problems.  It was also denied that forms 21 and 22 have not been sent to complainant to get registration of vehicle.  There is no negligence on the part of opposite parties in providing service to the complainant.  Hence, the complaint may be dismissed with costs.

                The complainant filed affidavit in support of his complaint reiterating the same.  The opposite parties 1 and 2 have also filed affidavit in support of their version reiterating the same.  On behalf of complainant Exs.A1 to A9 are marked.  No documents are marked on behalf of opposite parties.

                Ex.A1 is the copy of invoice No.036, dt.03-09-09 for a sum of Rs.4,99,200/-.  Ex.A2 is copy of invoice No.036A, dt.09-04-09 for a sum of Rs.1,18,800/-. Ex.A3 is the copy of warranty card            dt.30-03-09.  Ex.A4 is the copy of user guide.  Ex.A5 is the copy of letter dt.02-09-09 issued by Service Engineer of opposite parties.  Ex.A6 is the copy of proceedings dt.16-07-09 of RTA, Narasaraopet.  Ex.A7 is the copy of receipt issued by RTA, Narasaraopet.  Ex.A8 is the copy of legal notice dt.17-09-09 got issued by complainant to opposite parties. Ex.A9 is the reply registered notice got issued by opposite parties to the complainant dt.05-10-09.

Now the points that arise for consideration are

1. Whether this Forum has got jurisdiction to entertain the complaint?
2. Whether the complainant is using the vehicle for commercial purpose and he is not a consumer within the meaning of Consumer Protection Act?
3. Whether there is any deficiency of service on the part of opposite parties?
4. To what relief the complainant is entitled to?

POINT No.1

                The case of complainant is that he had purchased a wheel loader vehicle from the opposite parties on 09-04-09 through buyers order, under invoice No.36 (Ex.A1) for an amount of Rs.4,99,200/- and also paid Rs.1,18,800/- towards import duty, customs duties, import freight, packing and forwarding charges under invoice No.036A and that 10 days thereafter the service people of opposite parties visited the complainant for its configuration and that the opposite parties have not provided lubricant at the time of delivering machine for its smooth functioning and that opposite party has purchased lubricants by spending an amount of Rs.7000/-, that the opposite parties said that the capacity of the vehicle to lift the material is 700 kgs. but complainant found its ability as only 400 kgs., that within a couple of days the tyres of vehicle were damaged and that the complainant had purchased new tyres and that thereafter more than 3 times the engine of vehicle failed and the same was intimated to opposite parties by phone calls and that the opposite parties sent their service engineers after long lapse of time, due to which the work of complainant was disturbed and he sustained loss and that lastly on  02-09-09, the service persons of opposite party visited and thoroughly checked the machinery and opined that the vehicle was having so many problems and some of the parts of machinery have to be changed and that the service engineer issued a letter to that effect (Ex.A5) and that the vehicle is under warranty period, that the opposite parties failed to supply forms 21 and 22 to get registration of vehicle, as such the transport authorities imposed fine of Rs.7,025/- on the complainant and that the complainant paid the same.  Having vexed with the attitude of opposite parties, complainant got issued legal notice on 17-09-09 for which the opposite party gave reply dt.05-10-09 with false allegations, that as the engine is not in good conditions and having so many defects, the complaint is filed for refund of amount paid by complainant towards purchase of vehicle or in the alternative to replace with a new vehicle.

                The case of opposite parties is that the allegations of complaint are all false and that the complainant is not a consumer since he has purchased the loader vehicle for commercial purpose and that this Forum has no territorial jurisdiction since the wheeler loader vehicle was sold by opposite parties at Delhi and it was also specifically mentioned in column 3 of the declaration of the invoices that in case of any dispute the matter would be referred subject to Delhi jurisdiction only, that the opposite parties are residing at Delhi and carrying on business at Delhi and that therefore this Forum has no territorial jurisdiction to entertain the complaint, that on the complaint of complainant, the opposite parties have sent their engineers and on inspection of vehicle by the engineers, it was found that due to shortage of oil and improper maintenance, there was a minor problem in the clutch plate and hydraulic and the said problem was rectified by the engineers to the satisfaction of complainant and he was advised to take care while using the vehicle. The complainant has also acknowledged on the service report dt.18-05-09 and 21/22-06-09 that he was fully satisfied with the working condition of machine and denied other allegations made in the complaint.  

                It is not in dispute that the complainant had purchased wheel loader vehicle from the opposite parties under invoices Exs.A1 and also paid import duty and other charges under Ex.A2.  It is contended by the opposite parties that this forum has no territorial jurisdiction to entertain the complaint on the ground that the complainant had purchased the wheel loader vehicle from them at Delhi and that it was specifically mentioned in column No.3 of declaration of invoices that in case of any dispute the matter would be referred subject to Delhi jurisdiction only.  The complainant purchased the said vehicle from opposite parties at Delhi and the opposite parties have supplied the same to the place of complainant that is Piduguralla of Guntur District.  Whenever the complainant complained on the problems of vehicle, the service engineers of opposite parties have visited and attended for the complaints at the place of complainant i.e., Piduguralla of Guntur District.  Further when the complainant has issued legal notice to opposite parties, the opposite parties have given reply notice under Ex.A9 to the counsel of complainant at Guntur.

                The counsel for complainant relied on a decision reported in 2009 (4) ALD 559 (DB) wherein the High Court of Judicature of AP, Hyderabad held that :

                   “Consumer Protection Act 1986 – Section 11(2) (c) – District Consumer Forum – Would have jurisdiction to entertain complaint, even when a part of cause of action arisen within its jurisdiction – Legal  notice calling upon petitioner and other Doctor to pay certain amount towards loss and damages sustained by complainant by reason of deficiency of service issued by complainant from Nagarkurnool of Mahaboobnagar and replied thereto received by him at that place – Part of cause of action having arisen within jurisdiction of District Consumer Forum at Mahaboobnagar,  it cannot be said that District Consumer Forum at Mahaboobnagar has no territorial jurisdiction to entertain complaint under Section 12 of Act.”

                   In the said case the complainant has issued a legal notice to the other party to pay sum of Rs.9,00,000/- towards loss and damage sustained by him by reason of deficiency of service and the replies of the legal notice were sent to the complainant and the same was received by the complainant at Nagarkurnool of Mahaboobnagar District and thus it was held that the cause of action arose within the jurisdiction of the District Consumer Forum of Mahaboobnagar. 

                Similarly in the case on hand also the complainant’s counsel received reply legal notice from opposite parties at Guntur.  Therefore, it cannot be said that this Forum has no jurisdiction to entertain the complaint.  Even though it was specifically mentioned in column 3 of declaration of invoices that in case of any dispute, the matter would be referred “subject to Delhi jurisdiction only”.  The exclusion clause in the contract will be not be a bar to by The weDownload Manager">exercise jurisdiction by Consumer Forum.  This view was fortified in the decision reported in 2005 (2) CPR 15 Karnataka State Commission, Bangalore in a case between Mr.Pandey RK and another Vs. Arcadia Securities (P) Ltd. In this case, reply legal notice was received by the complainant’s counsel at Guntur and the service engineers of the opposite party have attended on the vehicle whenever the complainant made a complaint regarding the problems of vehicle. 

                Therefore, in view of decision relied on by the counsel for complainant and in view of decision reported in 2005 (2) CPR 15 of Karnataka State Commission, Bangalore this Forum has got jurisdiction to entertain the complaint.  Accordingly, this point is answered in favour of complainant.

POINT No.2

                The complainant has purchased the vehicle from the opposite parties in order to use the same to improve his business.  He is using the said vehicle for his livelihood but he has not purchased the same for the purpose of resale of said vehicle for commercial purpose.   The said vehicle was within the warranty period.  As seen from Ex.A3 warranty card, the warranty period is 6 months and as seen from Ex.A4 user guide, the guarantee period is 12 months from the date of purchase of vehicle.  The date of purchase of vehicle is 09-04-09.  The legal notice was issued by complainant on 17-09-09.  The defects of said vehicle arose during the warranty period of said vehicle.  Therefore, the counsel for complainant relied on a decision reported in II (2010) CPJ 39 (NC) between Wipro Limited Vs. Toppers Multimedia (P) Limited and others, wherein it was held that:

                   Consumer – Corporate entity – Defects within warranty – Entity purchasing goods for commercial purpose, availing service under warranty, entitled to seek Redressal under Consumer Protection Act – Complaint maintainable.

                   The complainant had purchase the vehicle and using it for his livelihood but not for resale of said vehicle.  Therefore, it can be concluded that the complainant is a consumer within the meaning of Consumer Protection Act.  Even assuming that the complainant had purchased the vehicle for commercial purpose as alleged by opposite party, the defects are pointed out during the warranty period of said vehicle.  Therefore, in view of decision relied on by the counsel for complainant, it can be safely concluded that the complainant is a consumer within the meaning of Consumer Protection Act.  This point is answered accordingly in favour of complainant.  

POINT No.3

                The case of complainant is that he had purchased a wheel loader vehicle from the opposite parties.  It was alleged by the complainant that there is an obligation on the part of opposite parties to provide lubricant to the complainant at the time of delivering the machine itself for smooth running of vehicle.  But the opposite parties have not supplied the same for which he has paid an amount of Rs.7000/-.  The said allegations were denied by opposite parties.  The complainant has not placed any evidence to show that there is an obligation on the part of opposite parties to supply the lubricant at the time of delivery.  It is further alleged by the complainant that the vehicle is not in good running condition from the beginning and that the lifting capacity of vehicle as stated by opposite parties is 700 kgs. But he found its ability as only 400 kgs.  The said allegation was also denied by the opposite parties and the complainant has not placed any evidence to show that the opposite parties have stated to him that the capacity of vehicle is 700 kgs. but it was found that its capacity is only 400 kgs.  It is further alleged by complainant that within a couple of days the tyres of vehicle were damaged and that he had purchased the same to meet his business demands.  The said allegation was also denied by the opposite parties and the complainant has not placed any evidence in support of his allegation that he has purchased tyres of vehicle within two days.

                The main allegation of complainant is that more than 3 times the engine of vehicle was failed and the same was intimated by him to the opposite parties and that the opposite parties have deputed their service engineers every time after a long lapse of time and that thereby he sustained loss and that finally on 02-09-09, the service persons of opposite parties visited and thoroughly checked the machinery and opined that the vehicle is having so many problems and some of the parts have to be replaced and that all the problems of vehicle arose during the warranty period.  The said allegation of complainant was also denied by opposite parties and stated that they have deputed their engineers to rectify the defects pointed out by the complainant and that they found fault in the vehicle due to mishandling and improper care taken by the complainant and that they have rectified the defects to the satisfaction of complainant and that the complainant acknowledged the same.  The warranty period of the wheel loader is 6 months as seen from Ex.A3 and the guarantee period for the said vehicle is mentioned as 12 months in the user guide Ex.A4.  Further it is not in dispute that the defects occurred to the wheel loader during the warranty period.  The service engineer of opposite party issued a letter dt.02-09-09 after checking the vehicle and he has stated in the said letter that there are problems in the main engine and parts also required and that the piston of engine also has to be changed urgently and that the gasket and the piston of the engine b/w and that the water is leaking.  He further stated in the said letter (Ex.A5) that the engine is not properly working, that he has discussed with service department for urgent parts and about the running condition of engine.  Therefore, as seen from Ex.A5 letter issued by service engineer of opposite parties, the main engine of vehicle was not in proper running condition and that it required immediate replacement of some parts. The opposite parties have not placed any evidence in order to show that they have supplied the required parts and kept the vehicle under proper and good condition after rectifying the defects.

                It was also alleged by the complainant that the opposite parties have not supplied forms 21 and 22 for getting registration of vehicle.  As a result of same, he could not get the registration of vehicle and therefore, the transport authorities have imposed a fine of Rs.7025/-.  The said allegation of complainant was denied by opposite parties. The complainant filed Ex.A6 proceedings of RTA, Narasaraopet where under, the complainant was imposed a fine of Rs.7025/- for not getting registration of vehicle and the complainant was paid the said amount under Ex.A7.  Before supplying forms 21 and 22 and before getting registration of vehicle, the complainant has used the same.  Therefore, the authorities of RTA, Narasaraopet have imposed fine.  Since the complainant has used the vehicle before getting it registered, the RTA has imposed fine.

                The complainant has issued legal notice (Ex.A8) to the opposite parties on 17-09-09 appraising all the problems that he has faced with the machine that was supplied by the opposite parties.  For which the opposite parties have also gave reply notice dt.05-10-09 under Ex.A9 stating that whenever the complainant had complained about the problems of vehicle, the service engineers of opposite parties have attended and rectified the defects to the satisfaction of complainant and that the complainant has also acknowledged for the same.  But the opposite parties have not filed any acknowledgements of complainant in support of their contention. In view of the facts and circumstances of case discussed above, we feel that there is deficiency of service on the part of opposite parties in rectifying the defects of vehicle in time by supplying required parts and in supplying forms 21 and 22 in time.  Accordingly, this issued is answered in favour of complainant.                                                             

POINT No.4

                The complainant has prayed for refund of amount paid by him for purchasing the vehicle along with interest or in the alternative to replace with new vehicle and also prayed to award Rs.3,00,000/- towards damages for deficiency of service and mental agony.  In view of the facts and circumstances of case, we feel that the claim of complainant is not reasonable and we feel that ends of justice would meet if the opposite parties are directed to rectify the defects by replacing all the necessary parts at free of cost to the satisfaction of complainant or in the alternative if it is beyond repairs to replace the vehicle with a new one of the same model and to award compensation of Rs.10,000/- for the mental agony suffered by the complainant.  Accordingly this issue is answered.

                In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite parties 1 and 2 are hereby directed to depute their service engineers and rectify the defects of wheel loader vehicle by replacing all the necessary parts at free of cost and keep it in good running condition to the satisfaction of complainant or in alternative if it is beyond repairs to replace the vehicle with a new one of the same model.
2.  The opposite parties are further directed to pay an amount of Rs.10,000/- towards compensation towards mental agony suffered by complainant.
3.  The opposite parties are further directed to pay an amount of Rs.2000/- towards legal expenses to the complainant.
4. The above orders shall be complied within a period of six weeks from the date of receipt of copy of this order failing which, the amounts ordered in time No.2 and 3 shall carry interest at 9% p.a. till the date of realization.

Typed to my dictation by the Junior Steno, corrected by us and pronounced in the open Forum, this the 1^st day of November, 2010.    

         Sd/- x x x                                                        Sd/- x x x    

     MEMBER                                                                PRESIDENT I/C

APPENDIX OF EVIDENCE

No oral evidence is adduced on either side

DOCUMENTS MARKED

For Complainant:

For Opposite Parties:  NIL